Parents spend millions battling in court over child’s sleepovers

SEAN FINE

JUSTICE WRITER — The Globe and
Mail

Published
Sunday, Apr. 26 2015, 9:39 PM
EDT

Last updated
Sunday, Apr. 26
2015, 10:01 PM EDT

A Toronto couple spent $2-million
in a protracted court battle over whether their little boy could
spend nights with his allegedly violent father, in a conflict
that turned a precocious and sociable child into a shy, fearful
one.

The case, known as M. and F., is a
cautionary tale for parents who would rather fight than settle.
The trial lasted 34 days. At the heart of it was the mother’s
allegation that the father had been violent toward her,
rendering him unsafe to his son, now six, during overnight
stays. The case went on to the Ontario Court of Appeal, adding
to the costs borne by the mother, who owns a successful
insurance brokerage, and the father, a litigation lawyer.

In the end, the father won the
battle over sleepovers. The trial judge ordered the mother to
pay $500,000 toward his legal costs (the father had asked for
$900,000, and the mother wanted him to pay her $800,000), on the
principle that the loser pays.

The appeal court, affirming the
father’s victory on overnights and costs, told the mother to pay
an additional $40,000 toward the father’s appeal costs (he
wanted $160,000, she wanted him to pay her $120,000). “These
amounts are out of proportion to the issues on this appeal,”
Justice Mary Lou Benotto commented for the appeal court.

The case set one precedent (courts
do not have to use the label “custodial parent” when asked,
because it promotes an adversarial approach) and affirmed, and
perhaps extended, a second one (an expert report critiquing
another expert’s report is probably pointless). But it was the
level of acrimony, the expense involved and the extended use of
courtroom time, always in short supply, that caught the eye of
Toronto’s family law bar.

“It’s beyond comprehension how
these kinds of costs could have been incurred,” given the issue
at stake, lawyer Harold Niman, who was not involved in the case,
said in an interview. Lawyer Edwin Flak, whose name is on the
appeal court ruling for the mother, declined to comment. For the
father, lawyer Samantha Chousky said her firm has a
long-standing practice of declining to comment on its cases.

Mr. Niman said the appeal court’s
decision to uphold the $500,000 cost order against the mother
sent a strong message about using up judges’ time. “You pay as
you play.”

Marshall Korenblum, the
psychiatrist-in-chief at Hincks-Dellcrest Centre for children’s
mental health, read the ruling at The Globe’s request. “It never
ceases to amaze me how parents are willing to put their own
needs for revenge and winning above the needs of the child,” he
said.

Phil Epstein, editor of Family Law
Reports, said the most important aspect of the case was the
clash over family violence, and what it means for subsequent
parenting arrangements.

The couple had a three-year,
on-and-off relationship, and lived together for one month,
during which the child was conceived. The mother alleged the
father attempted to strangle her during sex, ripped out her
earrings, dragged her down stairs and hit her in the face. Once,
the police were called. (There was no information in the appeal
court ruling as to whether the man was charged.) The father has
been diagnosed with narcissistic personality disorder and has a
drinking problem.

Justice Kevin Whitaker of the
Ontario Superior Court of Justuce, who was the original trial
judge, said he saw no reason to believe the overnight visits
would not be safe, in spite of the allegations of violence,
which date from 2009. The father was raising three other
children, safely. The boy was already spending extensive daytime
hours with his father. And a respected child psychologist, Irwin
Butkowsky, who had been working with the family since the child
was nine months old, and who had been asked by both parents to
develop a parenting plan, had recommended the overnight stays.
(It was Dr. Butkowsky who noted how the boy had changed from
outgoing to apprehensive because of the ongoing tension and
conflict in his life.)

The mother retained psychologist
Peter Jaffe, who served on a national panel on violence against
women in 1992, to critique Dr. Butkowsky’s report. Dr. Jaffe,
who had not met the child, recommended against overnight visits
until the father completes treatment for violent behaviour. The
appeal court, striking a blow against an occasional feature of
high-conflict child-custody cases, said such ‘critique evidence
is rarely appropriate.” It said it lacks value as evidence, adds
expense and “risks elevating the animosity between the parties.”